Continuing Restrictions, 1993

Asbestos; Manufacture, Importation, Processing and Distribution Prohibitions; Continuing Restrictions on Certain Asbestos-Containing Products (40 CFR 763)

Continuing Restrictions, 1993

In 1989, the Environmental Protection Agency published a final rule that banned the manufacture, importation, processing, and commercial distribution of all products in the United States that that contained asbestos.  Two years later, this ban was largely overturned in the court case of Corrosion Proof Fittings vs. the EPA, argued before the Fifth Circuit Court of Appeals in New Orleans.  Though most asbestos-containing products were deemed permissible, controversy surrounded the part of the original ban that applied to new applications of asbestos and newly-manufactured products that had historically not contained the dangerous mineral.

Motion of Clarification

At the time of the decision, “the Court found that TSCA [the Toxic Substances Control Act] gave EPA the general authority to ban future uses of asbestos.”   Shortly thereafter, the EPA filed a Motion for Clarification to determine which asbestos products remained banned under the final rule.   In response, the Court declared that the overturning only applied to “products that were not being manufactured, imported, or processed on July 12, 1989,” – that is, products no longer manufactured by that date were still banned – leaving it up to the EPA to determine which products fit this category.

Products That Remain Banned

In an effect of court decision published in the Federal Register in 1992, the EPA “requested information on the status of 14 product categories in the rule that … may no longer have been manufactured, processed, or imported when the rule was published” in 1989.  Based on information in the original Regulatory Impact Analysis along with supplemental information gathered over the next three years, the EPA concluded that the following six categories of asbestos-containing products were still subject to the final rule and thus still prohibited from manufacture and sale:
  • Corrugated paper
  • Rollboard
  • Commercial paper
  • Specialty paper
  • Flooring felt
  • New uses of asbestos
Though the petitioners in the 1991 court case attempted to argue that “bans on discontinued products must take the form of a new rule,” neither the EPA nor the Fifth Circuit Court agreed, stating that these bans were still applicable under the 1989 final rule.

Products That Are Not Banned

Of the 14 categories that were under consideration, eight were determined to be “manufactured, processed, or imported on July 12, 1989, and … therefore no longer subject to the ban rule.”  These products are:
  • Pipeline wrap
  • Vinyl/asbestos tile
  • Millboard
  • Asbestos clothing
  • Asbestos-cement corrugated sheet
  • Asbestos-cement flat sheet
  • Roofing felt
  • Asbestos-cement shingle
Reference:
  • U.S. Environmental Protection Agency. (November 5, 1993). “Asbestos; Manufacture, Importation, Processing and Distribution Prohibitions; Continuing Restrictions on Certain Asbestos-Containing Products.” Retrieved March 22, 2011 from the EPA.